Root and branch reform needed for negligent medico-legal system

Between 2007 and 2017, over €1.1 billion was paid out in compensation in medical negligence cases in Ireland.

Furthermore, general damages awarded in Ireland are often many multiples of what are awarded in the UK.

The increase in medical litigation is a huge concern for healthcare professionals, particularly younger doctors, some of whom are avoiding certain areas of medicine prone to lawsuits.

Courts of law are intimidating places for patients and doctors alike, with the daunting prospect of a court appearance often hanging over them for several years.

Yet the only route available to many people who believe they have a valid medical negligence claim is the legal system.

Dr Gabriel Scally, in his CervicalCheck report, noted that for such cases the system in Ireland was “universally regarded as deeply flawed and in desperate need of reform”.

More recently, Mr Justice Kevin Cross, head of the High Court Personal Injuries Section, warned that people could die before their cases into alleged cancer misdiagnosis and delayed cancer diagnosis were heard.

The IMO has argued that the current system of litigation following an adverse event is not in the interests of patients, healthcare professionals or the State.

But changes are afoot. The Government has established an expert group headed by Judge Charles Meenan to consider alternative mechanisms to the court process for resolving clinical negligence claims. The group will issue a report in February.

In October the same judge reported on an alternative system to deal with claims arising from CervicalCheck.

Elsewhere, a mandatory duty of candour is included in the Patient Safety Bill, while pre-action protocols have also been proposed.

However, exactly what changes will deliver the best and fairest system for all is still subject to much debate.

Costs

Between 2013 and 2017, almost half a billion was spent on settling medical negligence claims.

In terms of legal fees, between 2001 and 2017, the amount paid for plaintiffs’ costs was €229 million, for defendants’ costs €141.68 million and for medical expert costs €16 million.

Last year, the cost of clinical negligence claims settled by the State Claims Agency (SCA) was €248.88 million. This includes legal costs, awards for damages and expert costs and represents a rise of over 20 per cent on the €206.4 million figure spent in 2016.

Ms Joice Carthy, Managing Partner of Augustus Cullen Law Solicitors, told the Medical Independent (MI) that the reduction in the real rate of return had impacted costs in Ireland.

The real rate of return, she said, was effectively the interest rate return above inflation at which a plaintiff can invest a lump sum.

This reduced from 3 per cent to 1 per cent for care costs and to 1.5 per cent for all other pecuniary damages as a result of the famous case of Russell v HSE.

“This was effectively a recognition of the fact that a seriously injured plaintiff could not realistically safely invest their award in something that would yield a return of 3 per cent above inflation. This had the effect of significantly increasing the value of lump sum awards,” Ms Carthy said.

According to Ms Hilary Steele, Claims Lead for Ireland at the Medical Protection Society (MPS), in a recent appeal decision, the award for a small scar, which the appeal judge noted was “probably the smallest scar I have ever seen from the subject of High Court proceedings in more than 35 years of legal practice”, was reduced from €50,000 to €25,000. The award in England for a similar injury is likely to be around £2,000 (approx €2,300).

Ms Hilary Steele

The Book of Quantum provides guidelines on the amounts which may be awarded or assessed in Personal Injury Claims.

Ms Steele told MI the award for loss of sight in one eye is up to €138,000 in Ireland, compared to £41,500 (approx €47,600) in England and Wales and loss of a tooth is up to €12,700 compared to £3,000 (approx €3,400).

In June, Judge Michael Twomey raised concerns in relation to the claim of a Garda who sustained a minor hand injury with no lasting harm.

His legal team referenced the Book of Quantum to argue for an award of up to €21,700. However, Judge Twomey concluded that the appropriate award should be €5,000.

“Having considered that the most catastrophically injured patient receives a capped amount of €450,000, he stressed that awards must be proportionate when considered in light of the sum awarded to those suffering the most life-changing and devastating injuries. The award for such a minor hand injury would have been about £600 (approx €670) in the UK,” Ms Steele said.

“Judge Twomey also looked at average earnings in Ireland, which are €45,611 per annum. He effectively asked whether it is fair and reasonable to compensate a patient with around six months of earnings when they have experienced bruising and minor discomfort for one week.”

Ireland’s situation in terms of rising costs is unfortunately not unique. In the UK plaintiffs’ legal costs rose from £77 million to £487 million in the decade up to 2017.

From 2016 to 2017, the total cost of these claims to the NHS was £1.6 billion, which includes £487 million of plaintiffs’ costs.

In New Zealand, which has a similar population to Ireland, a no-fault scheme exists, although issues of causation still have to be considered.

But is it a model to follow in Ireland? In 2010, the Accident Compensation Corporation (ACC), which runs the country’s no-fault scheme, was running a deficit of NZ$10.3 billion.

Between 2015 and 2016, the ACC claims/awards figure was €242 million (NZ$418 million). Comparing that to Ireland, the figure for Ireland for the five-year period 2011 to 2016 was €478 million.

“For the year 2015 to 2016, the ACC accepted 8,881 treatment claims resulting in the above cost, whereas in the five-year period, 2011 to 2016, in Ireland there were 5,753 medical negligence claims settled or concluded,” Ms Carthy noted.

“Effectively therefore, New Zealand had almost 9,000 cases in one year versus an average of 960 per annum in Ireland over the period 2011 to 2016.”

Ms Steele is concerned that Irish legal costs are higher than anywhere else in the western world.

A barrister’s brief in Ireland is often more than double what it would be for the same length trial in the UK, she said.

In a YouGov survey of over 1,000 Irish adults, 77 per cent agreed that the Government should do more to reduce the amount of money lawyers are able to claim from the HSE in legal costs and fees in relation to clinical negligence claims.

“Barristers’ brief fees in Ireland are dependent on the value and complexity of a claim. A senior counsel runs all clinical negligence trials (except the occasional assessment of damages hearings) and requires a junior counsel to act with them. Junior counsel’s brief fees are typically two-thirds of the senior counsel’s fees,” Ms Steele said.

“The reason for that is cases of cerebral palsy. Liability [claims that will be paid] for State claims at the moment in medical negligence is about €1.9 billion. It’s enormous and that trajectory is rising very rapidly. For example, in 2016 it was €1.6 billion and that was a 23 per cent rise on 2015. This is a huge problem,” Dr Mahony said.

She said State Claims Agency spending on legal services has been stable in recent years, because they adopt a panel approach. In comparison, plaintiff costs are rising.

“Cerebral palsy is the area that really stands out in maternity,” she remarked. “You can have claims reaching as high as €19 million. Claims can go from €2-3 million to €16-17 million, so these are massive payouts for individuals. That’s why liability is so high in maternity. There’s also the human cost of obstetricians being sued the whole time and cerebral palsy is most interesting as it completely stands out in terms of its contribution to liability and size of claims. It’s a devastating injury for individual and family.

“The problem is it’s a bit of a mystery in terms of causation. We know from large epidemiological studies from people like Nelson that birth asphyxia is not the only cause of cerebral palsy. It’s thought to account for somewhere between 10 and 20 per cent of cases of cerebral palsy, but not the majority.”

She dismissed the view that difficulties in reading CTGs result in cerebral palsy and outlined studies had shown that growth restrictions, infection, genetics and asphyxia are all causes.

Dr Mahony supported mediation and other alternative approaches to deal with cases to avoid patients having to go through the current legal system.

Changing practice

An editorial in the BMJ recently noted an emerging trend regarding the increase in tests ordered in primary care in the UK in recent years.

The editorial outlined many reasons for the rise, including stating: “Clinicians might also order unnecessary tests from fear of missing a diagnosis or defensive medicine, caused by escalating litigation rates. Many primary care patients present with non-specific symptoms and trying to differentiate those with serious underlying disease is a real challenge.”

He said that the two procedures GPs get sued for most involved the contraceptive implants and coils.

As a result, he said fewer doctors were performing the procedures for fear of being sued.

“None of my generation will do it as they are terrified of being sued,” he said.

“I definitely don’t plan on doing it,” said Dr Ó Tuathail, who knew of a trainer brought to court five times for insertion of a contraceptive coil.

Dr Ó Tuathail has given evidence before the Coroner’s Court in the past and found the whole process to be very “adversarial”.

“There was a huge amount of stress in that year waiting to give evidence. I was told not to communicate with the opposition. Also, what is said in the Court can be used in evidence in any later legal case,” he said.

As a GP, Dr Ó Tuathail maintained general practice was the “only specialty where you deal with uncertainty”.

“In the hospital you can do basic tests, such as bloods and x-rays, but in general practice you have no immediate access to these tests. You are using your history and examination to make a decision,” he said.

Legal cases “are having an impact on the way we practise medicine, which is unfortunate and I think general practice of all specialties is the one that is feeling it”, he said.

He feels we are now entering an age where in medicine “you’re not allowed to make a mistake” and agreed all doctors were becoming more risk averse.

Commenting on the Patient Safety Bill, Dr Ó Tuathail said the current provision of legal protection for staff making open disclosures should not be changed.

“It is not perfect but I think that safeguard is a help. I think it is probably best,” he argued.

He noted, however, that if a doctor was transparent and admitted an error “early on” that a patient was less likely to pursue an issue further.

“The lack of communication and patients not being told of certain things is a huge issue in claims,” he said.

The IMO, in its submission to the Expert Group to Review the Law of Torts and Medical Negligence, headed by Justice Meenan, stated how the current system leads to the practice of defensive medicine. The Organisation also highlighted the negative impact lengthy and costly court proceedings have on patients and doctors.

“Doctors are often the second victims of an adverse event. In addition to the trauma of causing injury to a patient, the majority of doctors undergo a significant amount of emotional stress as a result of litigation and fitness to practise procedures that accompany litigation,” the IMO said.

“Fear of damage to their reputation and loss of livelihood can impact on a doctor’s psychological and physical health resulting in anxiety, depression and exacerbation of existing health problems.”

Duty of Candour

In July, Government released the General Scheme of the Patient Safety Bill, which provides for the mandatory open disclosure of serious reportable patient safety incidents.

The Patient Safety Bill is being progressed by the National Patient Safety Office (NPSO), which was established by the Minister for Health Simon Harris in December 2016.

Minister Harris said the legislation would “for the first time provide in law for mandatory open disclosure in respect of serious patient safety incidents. The proposals being brought forward are in line with the UK Duty of Candour”.

“I strongly believe that creating a culture of mandatory open disclosure and learning from things that go wrong is the bedrock of making services safer,” Minister Harris added.

The Bill states that a registered health service provider “shall be guilty of an offence if the health service provider fails to make a mandatory open disclosure… or fails to notify a reportable incident”. The provider will receive fines or imprisonment if found guilty.

In this aspect, the Bill differs from the Civil Liability (Amendment) Act of 2017, which failed to introduce mandatory open disclosure.

Serious patient safety incidents such as death of an individual and permanent lessening of bodily, sensory, motor, physical or intellectual functions must be disclosed under the Bill.

Ms Carthy said the Bill is “largely to be welcomed” as voluntary disclosure “doesn’t work” and does not lead to more openness.

“Where there is an option not to tell, there is an understandable fear for medical practitioners… and so where you don’t have to, the disclosure doesn’t happen,” Ms Carthy said.

She is concerned that under the Bill a person cannot use any information provided to them in an open disclosure in any future legal proceedings and believes concerns regarding removing this qualification are “unfounded”.

“The issue I have with this is that this is your personal health information and to me in this era your information should be yours to do with as you want. If something happens you should have a right to know what happened to your body during surgery or a procedure, you should have the right, in my view, to use that information how you see fit,” she said.

If the proposal is passed into law, it would mean that a patient who knows they have been wronged would be forced to go through the legal process of finding information they already have, she said.

“At a time when everyone is criticising the length of time these cases take and the costs involved that seems nonsensical to me,” she remarked.

Pre Action Protocols

Pre-action protocols have been introduced in Ireland but are currently awaiting secondary legislation.

Already in place in the UK, they essentially mean a lot of information is exchanged by legal parties at an early stage, which in many situations leads to cases being resolved more quickly, leading to a reduction in legal costs and stress for all parties, including doctors.

“All parties, I think, could benefit from these things being wrapped up in a non-blame, open disclosure culture and bring it to a conclusion as soon as possible so that everyone can get on with their lives as soon as possible thereafter,” Ms Carthy said.

Ms Joice Carthy

According to the IMO, management of claims could be improved through early dialogue with injured parties and representatives, pre-action protocols and timely availability of records, as well as greater use of alternative dispute resolution mechanisms.

The opinion is included in the Organisation’s submission to the Expert Group to Review the Law of Torts and Medical Negligence headed by Justice Meenan.

According to a spokesperson for the SCA, the proposed introduction of the pre-action protocols in clinical negligence cases, together with the periodic payment orders (PPOs) legislation, “would transform the litigation landscape and remove the more adversarial elements of the current system for resolving such cases”.

Regarding PPOs, the Civil Liability (Amendment) Act 2017 provides for the award of damages by way of a periodic payments order in certain circumstances where a plaintiff has suffered catastrophic injuries and courts have begun awarding interim payments.

The Minister for Justice and Equality is due to publish regulations in relation to Pre-Action Protocols in Clinical Negligence Actions as provided for in the Legal Services Regulation Act 2015.

Pre-action protocols were among the recommendations made by the Law Society as far back as 2010 as part of the Working Group on Medical Negligence and Periodic Payments.

CervicalCheck – showing a way forward?

In October, Justice Charles Meenan issued a report on an alternative system to deal with claims arising from CervicalCheck, in which he proposed a tribunal.

Ms Joice Carthy, Managing Partner of Augustus Cullen Law Solicitors, told the Medical Independent the very nature of Irish courts is they are adversarial and the proposed tribunal is a way to avoid the often terrifying courts process for patients.

“I would welcome the fact that the women are being listened to and alternatives are being considered, but whether or not a tribunal is the best alternative, I wouldn’t be convinced of that yet. The devil will be in the detail,” she said.

The report by Justice Meenan noted: “No women or family member should feel deprived of the right to take legal action because of fear of publicity or the court process.”

Tribunals conducted in Ireland in the past have been notoriously expensive, but Justice Meenan maintained a tribunal would be “less costly”.

His report could also have implications for dealing with other clinical negligence claims.

“The tribunal established to deal with claims arising from CervicalCheck could, with modification, have wider application to hear and determine other medical negligence claims,” Justice Meenan said.

Dr Mahony noted that the CervicalCheck controversy would add to the already rising costs of claims.

“CervicalCheck will have a big impact. We don’t know the full extent of that because we’re not sure what will happen. In addition to medical negligence claims, you’ve also had the various redress schemes, like symphysiotomy, etc,” she said.

But is a tribunal the only solution for women and others pursuing medico-legal claims?

“Women in this situation certainly need to be dealt with differently, but what’s frustrating is that there are an awful lot of tools at our disposal that we are not using that could help bring that about,” Ms Carthy suggested.

The Mediation Act 2017 provides a welcome alternative, she said, especially if used in the early stages of legal claims.

Not fit for purpose

Dr Colin Doherty, Consultant Neurologist and Associate Professor of Epilepsy at Trinity College Dublin, believes the current system is “not fit for purpose”.

Speaking to MI, Dr Doherty said the same system had been in place for the past “80 to 100 years”.

It “takes little or no account of advances in law, social sciences, medicine, rehabilitation and most of all psychology”, he noted.

The legal process does not benefit patients and can in fact destroy lives, he argued.

In his view, a citizen’s assembly to debate how the system could operate more effectively in the interests of patients should be established.

“We need a root and branch revaluation of the process; I suggest a citizen’s assembly to look at all the evidence of what is being done elsewhere; to hear from victims and medical and legal experts and simply from citizens who want something fair and reasonable, which is not what we have now,” he maintained.